When one parent is awarded sole custody in a divorce, the other parent typically is required to fulfill his or her child support obligation by making payments to the custodial parent. The custodial parent, however, meets his or her support obligation through the custody itself. When parents are awarded joint physical custody in a divorce, the support obligation of each is often based on the ratio of each parent's income to their combined incomes, and the percentage of time the child spends with each parent.(back to top)
Under the federal Child Support Enforcement Act of 1984, each state must develop guidelines to calculate a range of child support to be paid, based on the parents' incomes and expenses. These guidelines vary considerably from state to state, which means that in virtually identical situations the child support ordered in one state may be far more or less than that ordered in another state.
Some states allow their judges considerable leeway in setting the actual amount, as long as the general state guidelines are followed. But an increasing number of states do not trust their judges to be consistent and therefore impose very strict guidelines that leave the judges very little latitude.
Regardless of how much latitude judges are given, the guidelines in effect in most states specify factors which must be considered in determining who pays child support, and how much. These factors usually include:
When a court sets child support, it often considers the family's pre-divorce standard of living and attempts to continue this standard for the children, if feasible. Courts, however, are aware of the difficulty of maintaining two households on the income that formerly supported one home. Maintenance of the same standard of living is therefore more of a goal than a guarantee.(back to top)
Courts often require each divorcing spouse to fill out a financial statement to provide a complete picture of the parents' financial situations before making a decision on child support. In the financial statement, the spouse must detail his or her monthly income and expenses.(back to top)
My soon-to-be-ex-wife wants custody of our children. She has a much higher income than I do. Will I have to pay child support, even though I earn much less money than her?
Courts are supposed to strive for fairness to the parents in establishing the dollar amount of child support obligations. When setting child support, a court normally considers the relative income and assets of both spouses. If the custodial parent earns more than the non-custodial parent, child support may be a small or nominal amount. In the real world, however, the custodial parent is usually the mother and normally has much less income than the non-custodial father. Accordingly, when courts consider the relative assets and income of the parties, they usually end up awarding child support to the custodial parent, who most often is the mother.(back to top)
Even though I have a high yearly salary, I have many expenses such as loan payments and income taxes. Will the court consider these expenses when determining my ability to pay child support?
Courts always consider a person's ability to pay when setting his child support obligations. A court looks at the payer's gross income from all sources (wages, public benefits, interest and dividends on investments, rents from real property, profits from patents and the like, and any other sources of income), less any mandatory deductions (income taxes, Social Security, health care and mandatory union dues). The result is the payer's net income.
In most states, deductions for credit union payments, wage attachments and the like are not subtracted when calculating net income. Thus, if John makes $2,000 per month, and income tax, Social Security, unemployment insurance benefits and other government deductions reduce his income to $1,500, this is his net income. The fact that $300 more is withheld to pay a credit union loan does not further reduce his net income for the court's purposes. The reason for this rule is that the law accords support payments a higher priority than other types of debts, and would rather see other debts not paid than have a spouse or child go without adequate support.
Also when setting support obligations, in some states the court may take into account the reasonable expenses incurred by the paying spouse for his own basic necessaries of life (such as rent or mortgage, food, clothing and health care). Courts, however, typically do not allow expenses such as school expenses, dining outside the home and entertainment to influence their support determination on the theory that family support should come before these types of personal expenses. And in a growing number of states, the expenses of the paying spouse are irrelevant.(back to top)
I pay child support for children from a previous marriage. How will this affect what I'll have to pay as a result of my current proceedings?
Some states allow you to deduct the amount of child support you pay for other children from your net income figure, which is used to determine how much support you should pay. This acts as sort of a credit. If you are asked to complete a financial statement, be sure to include this expense.(back to top)
Can the court base its child support order on what I am able to earn as opposed to what I'm actually earning?
In most states, the judge is authorized to examine a parent's ability to earn as well as what she is actually earning, and order higher child support if there is a discrepancy. Actual earnings are an important factor in determining a person's ability to earn, but are not conclusive where there is evidence that a person could earn more if she chose to do so.
For example, assume a parent with an obligation to pay child support leaves his current job and enrolls in medical or law school, takes a job with lower pay but good potential for higher pay in the future, or takes a lower paying job that provides better job satisfaction. In each of these situations, a court may base the child support award on the income from the original job (ability to earn) rather than on the new income level (ability to pay). The basis for this decision would be that the children's current needs take priority over the parent's career plans and desires.
On the other hand, several courts have ruled that a parent's imprisonment entitles the parent to a reduction or suspension of child support where there is no showing that the imprisonment resulted from an attempt to avoid paying the support.
Family Support Act of 1988